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| Monday, May 16, 2011 |
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Ramsey: Constitutional changes dead for this year
Lt. Gov. Ron Ramsey says there isn't enough time now to tackle changing the current judicial selection plan this year. In an interview with the Tennessee Report, Ramsey says he's "never been one that's for the popular election of the state Supreme Court," but has said he doesn't believe the current system is constitutional.
And after his recent run for governor
he says he has "seen how much money does influence elections in a statewide race ... that's probably not something we want. But, if they don't want that, let's change the constitution." Ramsey's current proposal would start the process of amending the state constitution.
Also, Sen. Mae Beavers has twice in the past week postponed action on a bill that would change the state attorney general to an elected position, saying she
wanted to make sure she has all the votes needed to advance the proposal
to the floor. It is scheduled for another hearing Tuesday.
TNReport.com has the interview
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TODAY'S OPINIONS
Click on the category of your choice to view summaries of today’s opinions from that court, or other body. A link at the end of each case summary will let you download the full opinion in PDF format. To search all opinions in the TBALink database or to obtain a text version of each opinion, go to our OpinionSearch page. If you have forgotten your password or need to obtain a password, you can look it up on TBALink at the TBA's Membership Central.
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SUPREME COURT DISCRETIONARY APPEALS Grants & Denials List
Court: TSC
http://www.tba2.org/tba_files/TSC/2011/certlist_051611.pdf
JEAN GARMAN v. GUY GARMAN
Court: TCA
Attorneys:
William A. Mynatt, Jr., Knoxville, Tennessee, for the appellant, Jean Garman.
Martha Meares and Paul R. Dillard, Jr., Maryville, Tennessee, for the appellee, Guy Garman.
Judge: STAFFORD
This is a divorce case. Wife appeals the trial court's order concerning: (1) the valuation of Husband's medical practice; (2) the division of certain marital debt; and (3) the award of
transitional alimony, rather than alimony in futuro, and the amount thereof. Discerning no error, we affirm.
http://www.tba2.org/tba_files/TCA/2011/garmanj_051611.pdf
GREG LANCE v. RANDALL YORK, District Attorney General, 13th Judicial District
Court: TCA
Attorneys:
Greg Lance, Pikeville, Tennessee, pro se.
Robert E. Cooper, Jr., Attorney General and Reporter; Joseph F. Whalen, Associate Solicitor General; and Benjamin A. Whitehouse, Assistant Attorney General, for appellee, Randall
York, District Attorney General, 13th Judicial District.
Judge: STAFFORD
This is an appeal from the trial court's order dismissing Appellant's petition for access to public records under Tennessee Code Annotated Section 10-7-505. The trial court dismissed the petition upon its finding that: (1) the Appellee records custodian responded to Appellant's records request; (2) the fee charged to Appellant was reasonable and in compliance with those set by the open records counsel; and (3) Appellant had, in fact, received the records that he requested. Discerning no error, we affirm.
http://www.tba2.org/tba_files/TCA/2011/lanceg_051611.pdf
MARSHALL H. MURDOCK, v. STATE OF TENNESSEE, et al.
Court: TCA
Attorneys:
Marshall H. Murdock, Tiptonville, Tennessee, pro se.
Mark A. Hudson, Nashville, Tennessee, for the appellee, Tennessee Board of Paroles and Tennessee Board of Corrections.
Judge: FRANKS
Petitioner brought this action styled: "Petition for Declaratory Judgment", naming the Tennessee Department of Corrections and the Tennessee Board of Paroles as defendants. The Trial Judge, responding to a Motion to Dismiss, dismissed the Department of Corrections on the grounds that it was not a proper party to challenge a parole board decision. The Trial Court then treated the Petition as a common law writ of certiorari, and held that the writ was not timely filed. Petitioner has appealed to this Court and we affirm the Judgment of the Trial Court.
http://www.tba2.org/tba_files/TCA/2011/murdockm_051611.pdf
IN RE SHAOLIN P. ET AL.
Court: TCA
Attorneys:
Stephen Mills, Nashville, Tennessee, for the appellant, Reginald P.
Robert E. Cooper, Jr., Attorney General and Reporter; Marcie E. Greene, Assistant Attorney General; for the appellee, State of Tennessee, Department of Children's Services.
Judge: BENNETT
The juvenile court terminated Father's parental rights on the grounds of abandonment by willful failure to provide support and substantial noncompliance with the permanency plans.
Because we have concluded that the Department of Children's Services failed to establish, by clear and convincing evidence, that Father's failure to pay support was willful or that the
Department's efforts to help Father find housing were reasonable, we reverse the juvenile court's decision.
http://www.tba2.org/tba_files/TCA/2011/shaolinp_051611.pdf
SPRING CRESS REALTY, LLC v. LARRY E. BROWN DBA S&B ASSOCIATES ET AL.
Court: TCA
Attorneys:
Curtis W. Isabell, Clinton, Tennessee, for the appellant, Larry E. Brown dba S&B Associates.
Steven E. Schmidt and Michael S. Kelly, Knoxville, Tennessee, for the appellee, Spring Cress Realty, LLC.
Judge: SUSANO
This is an action by an owner/developer of real property, Spring Cress Realty, LLC, against its excavation contractor, Larry E. Brown dba S&B Associates. The primary factual
allegation is that the excavator intentionally hid approximately 40,000 cubic yards of unsuitable soil in an "engineered fill." The complaint included a claim that Brown violated the Tennessee Consumer Protection Act ("the TCPA"), Tenn. Code Ann. section 47-18-101 et seq.(2001). After a bench trial, the court awarded Spring Cress a judgment against Brown for compensatory damages of $551,295, trebled under the TCPA to $1,653,885. Brown appeals raising issues as to the preponderance of the evidence and the statute of limitations applicable to the TCPA claim. We affirm.
http://www.tba2.org/tba_files/TCA/2011/springcress_051611.pdf
ASHAD R. A. MUHAMMAD ALI v. STATE OF TENNESSEE
Court: TCCA
Attorneys:
Ashad R.A. Muhammad Ali, Pro Se, Tiptonville, Tennessee.
Robert E. Cooper, Jr., Attorney General & Reporter, and Lindsy Paduch Stempel, Assistant Attorney General, for the appellee, State of Tennessee.
Judge: SMITH
This matter is before the Court upon the State's motion to affirm the judgment of the habeas corpus court by memorandum opinion pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. Petitioner has appealed the habeas corpus court's order summarily dismissing the petition for writ of habeas corpus. Upon a review of the record in this case,
we are persuaded that the habeas corpus court was correct in summarily dismissing the habeas corpus petition and that this case meets the criteria for affirmance pursuant to Rule
20 of the Rules of the Court of Criminal Appeals. Accordingly, the State's motion is granted and the judgment of the habeas corpus court is affirmed.
http://www.tba2.org/tba_files/TCCA/2011/alia_051611.pdf
STATE OF TENNESSEE v. JOHN D. BARNHART
Court: TCCA
Attorneys:
Joe R. Johnson, II, Springfield, Tennessee, for the appellant, John D. Barnhart.
Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and Jason White,
Assistant District Attorney General, for the appellee, the State of Tennessee.
Judge: WOODALL
Appellant, John D. Barnhart, was indicted by the Robertson County Grand Jury for aggravated assault and violation of the Sexual Offender Registration Act. Appellant pled guilty. In conjunction with the guilty plea, Appellant received a two-year sentence as a Range II, multiple offender for the conviction for violation of the Sexual Offender Registration Act and a six-year sentence for the aggravated assault conviction. The manner of service of the sentence was left to the trial court. After a sentencing hearing, the trial court
sentenced Appellant to serve his sentence in incarceration and ordered the sentences to run consecutively. On appeal, Appellant contends that the trial court erred in denying an
alternative sentence and in ordering the sentences to run consecutively. We affirm the judgments of the trial court.
http://www.tba2.org/tba_files/TCCA/2011/barnhartj_051611.pdf
STATE OF TENNESSEE v. MARCUS D. BELL
Court: TCCA
Attorneys:
R. Lance Miller, Clarksville, Tennessee, for the appellant, Marcus D. Bell.
Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and Steven L. Garrett, Assistant
District Attorney General, for the appellee, State of Tennessee.
Judge: GLENN
The defendant, Marcus D. Bell, was convicted by a Montgomery County Circuit Court jury of two counts of possession of a firearm by a person previously convicted of a felony drug offense, a Class E felony, and was sentenced to concurrent terms of four years as a Range II offender, to be served consecutively to the defendant's prior sentences in the Department of Correction. On appeal, he argues that the evidence was insufficient to sustain his convictions. After review, we affirm the judgments of the trial court.
http://www.tba2.org/tba_files/TCCA/2011/bellm_051611.pdf
STATE OF TENNESSEE v. JENNIFER RENEE DENNIS
Court: TCCA
Attorneys:
Gregory D. Smith (on appeal), Clarksville, Tennessee, and Andrew Jackson Dearing, III, (at trial), Shelbyville, Tennessee, for the appellant, Jennifer Renee Dennis.
Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; Charles Frank Crawford, Jr., District Attorney General; and Michael D. Randles,
Assistant District Attorney General, for the appellee, State of Tennessee.
Judge: OGLE
The appellant, Jennifer Renee Dennis, admitted in the Bedford County Circuit Court that she violated probation sentences she was serving for two felony theft convictions, and the trial court ordered her to serve her original twelve- and three-year sentences in the Tennessee Department of Correction. On appeal, the appellant contends that the trial court erred by ordering her to serve her sentences in confinement and that the trial court should have
reinstated her probation. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court.
http://www.tba2.org/tba_files/TCCA/2011/dennisj_051611.pdf
JAMES DUBOSE v. JIM WORTHINGTON, WARDEN
Court: TCCA
Attorneys:
Joe H. Walker, District Public Defender, and Walter B. Johnson, II, Assistant District Public Defender, for the appellant, James DuBose.
Robert E. Cooper, Jr., Attorney General and Reporter, and John H. Bledsoe, Senior Counsel, for the appellee, Jim Worthington.
Judge: TIPTON
The Petitioner, James DuBose, appeals the Morgan County Circuit Court's dismissal of his petition for habeas corpus relief from his 1993 conviction for first degree murder by
aggravated child abuse. He claims his judgment of conviction is void because the indictment was invalid and charged him with violating a statute that did not exist at the time of his
offense. We affirm the judgment of the trial court.
http://www.tba2.org/tba_files/TCCA/2011/dubosej_051611.pdf
STATE OF TENNESSEE V. RODRICKUS CARLOS JEFFERSON
Court: TCCA
Attorneys:
Peter D. Heil, Nashville, Tennessee (on appeal) and Mark Anthony Kovach, Nashville, Tennessee (at trial) for the appellant, Rodrickus Carlos Jefferson.
Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Senior Counsel, Victor S. (Torry) Johnson, III, District Attorney General; Sarah Davis, Assistant District
Attorney General; and Janice Norman, Assistant District Attorney General, for the appellee, the State of Tennessee.
Judge: WOODALL
Following a jury trial, Defendant, Rodrickus Carlos Jefferson, was convicted of first degree premeditated murder and sentenced to life imprisonment with the possibility of parole. On appeal, Defendant argues: (1) that the evidence is insufficient to support his conviction; (2) that the trial court erred in allowing him to represent himself; and (3) the trial court erred in failing to instruct the jury on self-defense. After a thorough review of the record, we affirm the judgment of the trial court.
http://www.tba2.org/tba_files/TCCA/2011/jeffersonr_051611.pdf
STATE OF TENNESSEE v. ERIKA Y. JOHNSON
Court: TCCA
Attorneys:
Erika Y. Johnson, Madison, Tennessee, pro se.
Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel; Kim R. Helper, District Attorney General; and Sean Bernard Duddy, Assistant District
Attorney General, for the appellee, State of Tennessee.
Judge: THOMAS
The Defendant, Erika Y. Johnson, appeals as of right from the Williamson County Circuit Court's revocation of her probation and order that she serve the remainder of her sentence
in confinement. The Defendant contends that the trial court erred by ordering her to serve the remainder of her sentence in confinement. Following our review, we affirm the judgment
of the trial court.
http://www.tba2.org/tba_files/TCCA/2011/johnsone_051611.pdf
ERIC C. PENDLETON v. STATE OF TENNESSEE
Court: TCCA
Attorneys:
Eric D. Pendleton, Pro Se, Nashville, Tennessee.
Robert E. Cooper, Jr., Attorney General & Reporter, and Mark A. Fulks, Assistant Attorney General, for the appellee, State of Tennessee.
Judge: SMITH
This matter is before the Court upon the State's motion to dismiss or in the alternative to affirm the judgment of the trial court by memorandum opinion pursuant to Rule 20, Rules
of the Court of Criminal Appeals. Petitioner, Eric C. Pendleton, has appealed the trial court's order dismissing his petition for writ of habeas corpus in which Petitioner alleged that the indictments upon which he was convicted were void for failing to name all the essential elements of the crimes. Upon a review of the record in this case, we are persuaded that the trial court was correct in dismissing the petition for habeas corpus relief and that this case meets the criteria for affirmance pursuant to Rule 20, Rules of the Court of Criminal
Appeals. Accordingly, the State's motion is granted, and the judgment of the trial court is affirmed.
http://www.tba2.org/tba_files/TCCA/2011/pendletone_051611.pdf
STATE OF TENNESSEE v. JOHN RICHARD SPROUSE
Court: TCCA
Attorneys:
Benjamin S. Burton, Sevierville, Tennessee, for the appellant, John Richard Sprouse.
Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; James B. Dunn, District Attorney General; and Timothy Norris, Assistant District
Attorney General, for the appellee, State of Tennessee.
Judge: WITT
The defendant, John Richard Sprouse, appeals the Sevier County Circuit Court's revocation of his probation. On appeal, he contends that the trial court erred by ordering him to serve
his six-year sentence in incarceration. Discerning no error, we affirm the judgment of the trial court.
http://www.tba2.org/tba_files/TCCA/2011/sprousej_051611.pdf
STATE OF TENNESSEE v. FELIX TAMAYO
Court: TCCA
Attorneys:
Manuel Benjamin Russ (at trial) and Michael A. Colavecchio (on appeal), Nashville, Tennessee, for the appellant, Felix Tamayo.
Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Bret Thomas Gunn, Assistant
District Attorney General, for the appellee, State of Tennessee.
Judge: THOMAS
The Defendant, Felix Tamayo, pled guilty to five counts of aggravated robbery, a Class B felony, with the sentence to be determined by the trial court. The trial court imposed
consecutive sentences of 12 years as a Range I, standard offender for each count, for a total effective sentence of 60 years. In this appeal as of right, the Defendant contends that the trial court erred in setting the length of his sentences and in ordering consecutive sentencing. Following our review, we affirm the judgments of the trial court.
http://www.tba2.org/tba_files/TCCA/2011/tamayof_051611.pdf
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| TODAY'S NEWS |
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Legal News
Passages
General Assembly News
U.S. Supreme Court
Disciplinary Actions
Career Opportunities
TennBarU CLE
TBA Member Services
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| Legal News |
| 4 named to Ethics Commission |
| Gov. Bill Haslam and House Speaker Beth Harwell have each named two new members to the Tennessee Ethics Commission, which now gives the group a quorum so it can meet. The panel has a backlog of "about 40 to 50" cases to act upon at its June 17 meeting, according to Becky Bradley with the Bureau of Ethics and Campaign Finance.
Haslam nominated Pamela B. Martin of Mount Juliet, who is president of Cushion Employer Services, and former Washington County Mayor George P. Jaynes. Resolutions to confirm are expected to receive approval by the legislature next week.
Harwell in April nominated Nashville attorney John Gregory Hardeman and Kingsport attorney James G. Stranch III. Resolutions confirming the two appointments have been passed unanimously.
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The News Sentinel has this story
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| Many state court races funded with secret money |
| In the 39 states that elect judges, the funding of campaigns for spots on the bench is becoming more opaque. The trend follows what is going on in federal political races as a result of the January 2010 U.S. Supreme Court ruling in Citizens United v. Federal Elections Commission.
Data from New York University's Brennan Center for Justice, a judicial-reform group, shows that the total amount of money flowing into state Supreme Court races doubled in the past decade, to more than $200 million nationwide. |
Bloomberg BusinessWeek has more
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| Poor's need for legal services increases, funding goes down |
| When the Legal Services Corporation had its funding cut by $15.8 million as a result of last month's budget compromise, the 136 legal aid programs across the country were put in a tight spot, not only because of the reduction in federal funds, but also because they are getting limited support from cash-strapped states, seeing dwindling revenue from trust accounts and facing a growing population of people eligible and in need of their help. "I see this as one of the great challenges facing our justice system today," New York's Chief Judge Jonathan Lippmanin said. |
ProPublica looks into the situation
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| Lapses in employee training can lead to lawsuits |
| Knoxville lawyer Pamela Reeves reminds employers that
employees should be told about harassment-free workplace policies on a regular basis, with training and documentation. |
The News Sentnel carries her column
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| Passages |
| Services incomplete for Memphis lawyer Bill Domico |
| Memphis attorney William Donald (Bill) Domico died suddenly May 15. He was 62. Funeral arrangements are pending.
Mr. Domico was a founding member of Domico Kyle PLLC, and was admitted to practice before the U. S. District Courts of Tennessee and Arkansas and argued in the U.S. Court of Appeals for the Sixth Circuit. He was certified as a medical malpractice specialist by the Tennessee Commission on Continuing Legal Education and Specialization. After a career in the field of audiology, he obtained his law degree from the Cecil C. Humphreys School of Law at the University of Memphis in 1989. He practiced in medical malpractice defense, health care law, medical device defense and environmental law.
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| General Assembly News |
| House votes to end pretrial diversion |
| The House has voted to abolish the state's pretrial diversion program, approving HB694, after much debate over a proposed amendment by Rep. Vance Dennis, R-Savannah.
The current law, enacted in 1975, excludes defendants charged with Class A and B felonies -- mostly violent offenses -- from getting pretrial diversion, but allows it for some specified Class C felonies. Dennis said it would "fix this program and not just kill it outright ... for the sake of a couple of (district attorneys) who got their toes stepped on."
The bill, without the amendment that was voted down 55-36, is scheduled for a vote Tuesday in the Senate Judiciary Committee. |
The News Sentinel has this story
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| Haslam adjusts budget with amendment |
| Gov. Bill Haslam has filed an amendment with the General Assembly that adjusts next year's budget proposal to reflect new estimates on increased state revenues. The changes include $1 million recurring to limit the impact of the Hall Income Tax on eligible seniors 65 years and older, beginning in fiscal year 2012-2013.
The supplemental appropriations amendment (SB2090/HB2139) includes funding that was not included in the budget the governor presented in March, which was based on earlier revenue projections. |
The Daily News Journal has the story
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| Bills this session picked up from outside sources |
| Several of the most controversial bills debated in the legislature this year, as well as some that have slipped under the radar without much attention, were written and promoted by groups outside Tennessee. These include bills opposing the federal health-care reform plan, bills suggesting that followers of Islamic law threaten the state, bills to sharply curtail the activity of labor unions -- and bills whose sponsors had not even read them first.
These and other bills were authored far away by the staffs of some of the most powerful business and conservative groups in the country or by activists with national agendas. |
The Tennessean explores this trend
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| More editorials rail against foreclosure bill |
| Newspapers do not like the proposed foreclosure bill,
HB1920, and more have come out this week with editorials against it, including the
News Sentinel,
The Mountain Press,
Cleveland Daily Banner and
The Tennessean.
In accompanying opinion pieces in the Tennessean, the bill's sponsor, State Rep. Jimmy Matlock, R-Lenior City, writes to clear up details he says have been misrepresented, especially by newspapers. The bill "simply changes a law that is more than 150 years old to make it less costly for homeowners, who are the ones responsible for the cost of foreclosure, or for banks, who are responsible if the homeowners cannot pay," he writes.
Rep. Sherry Jones, D-Nashville, writes that "If this measure becomes law, Tennessee will be among the easiest places in the country to foreclose on homes" and urges lawmakers to to take the "side of homeowners, who are facing tough economic challenges."
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| U.S. Supreme Court |
| FOIA cannot be used in whistle-blower suit |
| Whistle-blowers hoping to recover money by suing government contractors for alleged fraud can't base their suits on information collected in freedom of information requests, the U.S. Supreme Court has ruled.
The court ruled against whistle-blower Daniel Kirk in a 5-3 opinion. Dissenting, Justice Ruth Bader Ginsburg said the majority opinion "severely limits whistle-blowers' ability to substantiate their allegations before commencing suit." |
ABAJournal.com connects you
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| Disciplinary Actions |
| Florida lawyer reinstated |
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Phillip Edward Kuhn, a lawyer in Lakeland, Fla., was reinstated to the
practice of law in Tennessee on May 13 after paying his Board of
Professional Responsibility fees and required fines. |
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| Career Opportunities |
| Real estate, bankruptcy associate sought |
| A mortgage default law firm is interested in growing its new Nashville
office by hiring an associate attorney with three to seven years experience.
Candidates should have considerable litigation and courtroom experience.
Real estate litigation, foreclosure and bankruptcy experience is a plus. Job
responsibilities include reviewing documents, drafting court pleadings, and
attending state and federal court hearings. |
Learn more on JobLink
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| TennBarU CLE |
| Let's celebrate #200 |
| No birthday cake for registrants, but the Tennessee Bar Association's TennBarU marks a significant milestone tomorrow (Tuesday) when it presents its 200th CLE webcast. From it's launch three years ago this month, TBA webcasting has grown dramatically, both in offerings and attendance. The webcasting format has made possible the delivery of a wide range of topics to attorneys all across the state, while also reducing their time out of the office and travel costs. Tomorrow's program will be a "Review of the Alimony Statute: Cases, Deductibles, and More," presented by Amy Amundsen of Rice, Amundsen & Caperton. |
Find out more about this webcast or any of the others already scheduled for this summer
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| TBA Member Services |
| CompuPay offers deals for TBA members |
| CompuPay is proud to serve as the official payroll services provider for the Tennessee Bar Association. To serve Tennessee attorneys the company is offering two months of free payroll processing for all TBA members and waiving set up fees for members with up to 99 employees. |
Learn more about CompuPay's benefits
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Questions, comments: Email us at TBAToday@tnbar.org
About this publication: Today's News is a compilation of digests of news reports of interest to Tennessee lawyers compiled by TBA staff, links to digested press releases, and occasional stories about the TBA and other activities written by the TBA staff or members. Statements or opinions herein are those of the authors and do not necessarily reflect those of the Tennessee Bar Association, its officers, board or staff.
© Copyright 2011 Tennessee Bar Association
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